Specific Performance & CA Real Estate Contracts

How To Handle Buyers Backing Out Of Property Sales

Selling a home can be a very stressful process for homeowners. This can especially be the case when the buyer unexpectedly backs out of the sale after the contract has been formed but before closing on the property. California law provides legal protections for sellers who want to buyer fulfill the contract and take possession of the property. One prominent solution is called Specific Performance.

Specific Performance in CA Law

Specific performance is a contractual remedy for parties that are ready, willing and able to perform on the terms of a contract; however, the other party has breached the contract and failed to meet the required performance under the contract. Ultimately, specific performance uses court orders to require the breaching party to fully perform their obligations under the contract.

In real estate contracts, specific performance is a common remedy for sellers to judicially force the performance of the buyer by court order. It is a way for the court to order the transfer of the property as a remedy in a contractual dispute when cash damages are not sufficient.

In order to have an action for specific performance, there must be proof of:
(1) A valid and binding contract between the parties with sufficiently certain and definite
(2) A mutual agreement of the remedy and obligations of each party;
(3) The performance, tender, or excuse for nonperformance of the seller bringing the action;
(4) Breach of the contract by the buyer; and
(5) Inadequacy of the remedy at law, such as monetary damages.

Contract and Performance

To be sufficiently definite and certain, the contract must contain enough essential terms so that both the buyer and the seller mutually agree on the sale of land. These terms include description of the property, price, important dates, etc. The seller bringing a specific performance action must be ready and able to perform under the terms of the contract. This means the seller must be ready to close on the property at the end of escrow.

However, the buyer has backed out of the sale. By backing out, the buyer has breached their duty to perform under the contract because they are refusing to pay the determined amount for the property when the amount it due.

Inadequate Legal Remedy

A legal remedy is inadequate when money damages are too speculative or the thing bargained for is unique. Property is considered unique under the law of specific performance. Therefore, in the case of a contract for the transfer of land, or an interest in land, whether by sale or lease, it is presumed that damages would not adequately compensate.

Accordingly, the seller can show that the buyers breach cannot be adequately compensated for in damages such as cash, because the proper remedy is the transfer of land from the seller to the buyer. Here, specific performance will be granted as a matter of course unless some other equitable reason for denial or defense is shown.

Defenses to Specific Performance

In specific performance action for the sale of land, defenses raised by the breaching party can include “unclean hands” (when the party seeking rescission is guilty of some wrongdoing in the transaction) or “laches” (when a party delays in bringing an action and the delay prejudices the other party).

If a buyer has backed out of the sales contract of your property or you otherwise find yourself in need of an experienced San Diego real estate lawyer, please contact our office at (858) 926-5797 or through our online contact form.

Latest News & Updates

Meet Our San Diego Attorneys

Thomas F. Gallagher, Esq.


(858) 926-5797
tom [at] tomgallagherlaw.com

Troy B. Krich, Esq.


(858) 926-5797
troy [at] tomgallagherlaw.com

Contact Gallagher Krich, APC

What Clients Say:

Mike K., Google

August 11, 2023

Thank you so much for all your help in resolving a real estate matter so quickly and efficiently.

Mike K

What Clients Say:

Veronica D., Yelp

October 17, 2023

We had the pleasure of speaking with Troy for a contractor issue we had recently. He is smart, patient, empathetic and basically the lawyer we would want to be our side for (may God forbids) any legal assistance or battle we need! The interaction we had with him was “free of charge” but we already felt his dedication and concern (he took the time to reach out and follow up on how he can assist us further) which busy lawyers would normally ask their admin or assistant to do so on their behalf. We will be sure to contact again Troy, if need be! Thank you!!

Veronica D

What Clients Say:

Daniel E., Google

October 11, 2022

I left a voicemail for Tom late Sunday evening and received a phone call first thing the next morning.

Tom was very quick to reply to any questions I had, and if he was caught up in a meeting, he was sure to return my call promptly.

Tom provided sound and logical advice, during a very stressful and uncertain time. At times I asked him to be more aggressive and was often met with the pros and cons of that decision, allowing me to understand the approach and thought process behind his strategy.

Ultimately he provided options for several paths for us to take, worked swiftly, and got us where we needed to be.

He reached out several times to check on my sanity and make sure I was good.

As someone with very high expectations, I would highly recommend his services. He provided expertise that proved to be successful, and also took the time to make sure I was emotionally solid.

Tom assisted with me with a 50% / 50% ownership conflict.

Daniel E

What Clients Say:

Deanna, LawConnect.com

February 23, 2022

Really informative and actionable, very grateful to have connected and I look forward to working more with them in the future.


What Clients Say:

Marilyn, LawConnect.com

February 8, 2022

i liked that a lawyer, and not a staff member, called me to get the details and he gave me his opinion of what his initial thoughts are about my case.


What Clients Say:

Bob W., Google

August 30, 2021

What was thought to be a simple breach of contract turned into a nightmare. Through their tenacity and their deep knowledge of the law, we were successful. There is no reason to look any further as you will not get any better representation than this firm. I highly recommend them and strongly suggest that if you are considering starting a business or are already managing one, this firm will guide you, avoiding the troubled waters businesses sometimes find themselves in.

Bob W

What Clients Say:

Rasmita M., Google

August 13, 2021

Johnny Nitti helped us with our estate plan. He was very meticulous while drafting the plan and spent enough time to explain the details to us. He filed the deed with county recorder and paid for the fees himself. Overall, Johnny did a great job and we definitely plan to work with him in the future for any updates to our EP.

Rasmita M

What Clients Say:

George A., Google

August 6, 2021

Johnny Nitti helped me with my estate planning (will, living trust, etc.) and made the process smooth. He is very responsive and organized. I highly recommend contacting Johnny.

George A

What Clients Say:

Ashley C., Google

July 18, 2020

Tom Gallagher is very knowledgeable and helpful when it comes to business law. I reached out to him reguarding the Pandemic and my salon and I’m so glad I did. Many times stress and hard times can fog clarity and he really helped me understand the laws.

Thanks Tom!!!

Ashley C

What Clients Say:

Evan D., Google

July 16, 2019

Thank you Troy for everything! Professional, prompt, and smooth handling of my case. I will be recommending to anyone that is in need of a lawyer.

Evan D